CEDH · CASELAW;COMMUNICATEDCASES;ENG — 6 octobre 2015

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 6 October 2015   THIRD SECTION Application no. 2303/12 Lamara MANUKYAN against Armenia lodged on 19 December 2011 STATEMENT OF FACTS The applicant, Ms Lamara Manukyan, is an Armenian national who was born in 1960 and lives in Gyumri. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. In June 2008 the applicant’s son, Sergey Manukyan, was drafted into the Armenian army. He was assigned to military unit no. 20666 (‘the military unit’) situated in Noravan village, Armenia. It appears that on 14 May 2009 chief lieutenant V.G., the platoon commander, humiliated, verbally abused and punched Sergey Manukyan who was on duty in the sentry post, for having lied earlier to a fellow serviceman about not having any cigarettes. Immediately after the incident Sergey Manukyan left the sentry post and tried to commit suicide by making two cuts on his left wrist with a razor blade. At that point, one of his fellow servicemen saw him and took him back to the sentry post, where V.G. put a bandage on the wound and ordered the soldiers on duty not to tell anyone about what had happened. The next day captain M.S., the commander of the tank company of the military unit, learnt about the incident but did not report it to his superiors. It further appears that on 10 November 2009 at around 10 to 12 a.m., when Sergey Manukyan was on duty in the sentry post, an argument started between him and V.G. when the latter refused to give him a cigarette, saying that he ‘did not deserve one’. At that point V.G. insulted Sergey   Manukyan and punched him a number of times. At around 3.50 p.m. on the same day G.A., the commander of the military unit, stopped his personal car for about twenty to twenty-five seconds in front of the gates of the sentry point, waiting for them to be opened for him to pass. Sergey Manukyan ran towards the gates and opened them. However, G.A. stepped out of the car and punched Sergey Manukyan in the face for having been late with opening the gates. About ten minutes later Sergey Manukyan was found dead with a gunshot injury to the head, close to the gates of the sentry point, in between the walls of the storehouse and the loading station of the military unit. On the same day the police carried out an examination of the scene of the incident. According to the record of the examination, traces of blood were found by the metal fence of the loading station and on the ground at a distance of about sixteen metres from where Sergey Manukyan’s body had been found. Samples were taken from the blood stains found. On 11 November 2009 criminal proceedings were instituted under Article 110 of the Criminal Code in relation to Sergey   Manukyan’s suicide with the gun attributed to him. On 11 December 2009 an expert conclusion was received which stated that the samples taken from the blood discovered on the fence of the loading station and on the ground belonged to the same blood type as that of Sergey   Manukyan so they could originate from him. It appears that on 17 December 2009 V.A., the forensic medical expert who had conducted a post-mortem examination of Sergey Manukyan’s body, delivered his opinion. The opinion stated, inter alia , that the cause of Sergey Manukyan’s death was a perforating ballistic trauma to the head with the bullet entry in the mouth cavity in the area of the palate and its exit from the area of the occiput. The opinion further stated that other injuries had been discovered on Sergey Manukyan’s body, namely a bruise on the left side of the chin which had been inflicted with a blunt object shortly before death, which had no link to the death, abrasions in the area of the left glenohumeral joint, the right scapula, the right radiocarpal joint and the fifth digit of the right hand which had also been inflicted with blunt objects while he was still alive, not long before death, with the exception of the abrasion on the fifth digit of the right hand which had been inflicted about five to seven days before death. It further appears that a posthumous forensic psychiatric and psychological examination was assigned at some point during the investigation, the conclusion of which was delivered on 1 March 2010. According to the experts’ conclusion, Sergey Manukyan had been in a critical condition of mental stress before committing suicide. V.G.’s actions had significantly affected Sergey Manukyan’s psychological condition before the suicide and it could be assumed that there was a causal link between them. The opinion further stated that the information in the materials of the case file was not sufficient to conclude whether there was a causal link between Sergey Manukyan’s psychological condition before the suicide and the actions of G.A. or to determine conclusively whose actions specifically had resulted in Sergey Manukyan’s suicide. On 15 April 2010 V.G. was charged with abuse of power under Article   375 §§ 1 and 2 of the Criminal Code for having provoked extremely intense psychological stress which had resulted in Sergey Manukyan committing suicide. V.G. was also charged for a different episode of having physically abused another soldier at various times in September 2009. On the same day V.G. was detained, based on the decision of the Syunik Regional Court (the Regional Court). On 22 April 2010 M.S. was charged under 375 § 1 of the Criminal Code for not having informed the superior military command about the incident of 14 May 2009 for fear of being reprimanded for the lack of discipline and the unstable mental state of conscripts in the subdivision under his leadership. As a result, it had not been possible to investigate the incident in a timely manner and hold the guilty person responsible. On the same day M.S. was put under an undertaking to remain on site. It appears that an additional posthumous forensic psychological examination was assigned. Its conclusion was delivered on 5 May 2010 and stated, inter alia , that Sergey Manukyan had committed suicide as a result of the extreme emotional stress caused first by V.G.’s actions and then by the unlawful actions of G.A. On an unspecified date expert V.A. was questioned in relation to his opinion of 17 December 2009 and stated that it could not be ruled out that the bruise on the left side of the chin discovered on Sergey Manukyan’s body had been inflicted on 10 November 2009 at around 3.50 p.m. when G.A. punched him. It appears that at some point during the investigation, one of Sergey   Manukyan’s fellow servicemen, G.M., was questioned and stated, inter alia , that he had seen G.A. punching Sergey Manukyan in the face in front of the gates, presumably for having opened the gates late. On 5 June 2010 G.A. was charged under Article 375 §§ 1 and 2 of the Criminal Code for not having reported the incidents of physical abuse of soldiers by V.G. which had taken place in the military unit under his command, in order to maintain the impression of a highly disciplined military unit and receive a positive attitude on the part of the superior military command. Also, by exceeding his official powers, and contrary to internal military service regulations, he had issued unlawful orders to soldiers to open the gate of the sentry point without the permission of the sentry post leader or without the latter accompanying them. On another such occasion when this happened, namely on 10 November 2009, he punched Sergey Manukyan in the face for having kept him waiting in front of the gates for about twenty to twenty-five seconds before he opened them. This caused light damage to Sergey Manukyan’s health but also brought about a grave consequence in that several minutes after that, he committed suicide by shooting himself with the gun attributed to him. On 2 June 2010 G.A. was arrested. On 5 June 2010 the Regional Court made a decision to authorise G.A.’s detention for a period of two months. By the same decision the Regional Court found G.A.’s release on bail permissible. On an unspecified date G.A. was released on bail. It appears that in June 2010 the investigator made a decision to terminate G.A.’s service temporarily. The relevant decision stated, inter alia , that it had been established during the investigation that G.A. had used his official capacity in order to exert undue influence on the participants in the proceedings. On 20 July 2010 the case, along with an approved bill of indictment, was sent to the Regional Court to be examined on the merits. On 25 August 2010 the applicant sent a complaint to the Minister of Defence claiming that in reality her son had been killed. She referred to the conclusion of the forensic medical examination of 17 December 2009 which had confirmed that, apart from the gunshot wound, there were a number of other injuries on Sergey Manukyan’s body which had been inflicted before his death. The applicant argued that this proved that before the incident there had been a fight, which fact was not being disclosed. She also complained that the proceedings before the Regional Court were not being conducted in an impartial manner and that the participants in the proceedings constantly failed to appear before the court to testify, without any proper reasons. On 15 November 2010 the applicant lodged a motion with the Regional Court requesting G.A.’s detention. She argued that there was ample evidence in the materials of the case file showing that, being at large, he could influence the participants in the proceedings. She referred to witness statements according to which, after the incident, G.A. had told the officers under his command to state that Sergey Manukyan had killed himself because of family issues when asked about the reasons for committing suicide. However, it had been established that there were no such problems. She finally argued that the proceedings concerning the examination of Sergey Manukyan’s death could not be properly conducted while G.A. was still at large. In particular, the court had failed to undertake necessary measures in order to eliminate the risk of G.A. and witness G.M. colluding with each other. Also, the court had failed to secure the appearance of G.M. at trial. Thus, at the first hearing the court had stated that G.M. could not attend; at the second hearing it stated that, according to a certificate delivered by the head of the village community, G.M. could not appear, and at the next two hearings the court stated that G.M. was abroad and it was not possible to summon him. However, Sergey Manukyan’s father had found out that G.M. had not left the country. On 16 November 2010 the applicant filed a complaint with the Council of Justice seeking to have disciplinary measures taken in respect of Judge D. of the Regional Court on the ground that he had failed to secure the proper conduct of the proceedings. She mainly reiterated the submissions in her motion of 15 November 2010 to argue that, by letting G.A. remain at liberty, Judge D. had failed to minimise the risk of his being able to influence witnesses and especially G.M. On 17 November 2010 the applicant sent a request to the Minister of Defence asking him to take measures to reduce the risk of G.A. colluding with the officers and conscripts under his command who had testified or still had to testify as witnesses in the proceedings. On 19 November 2010 the applicant lodged another motion with the Regional Court seeking G.A.’s detention. In addition to her arguments submitted in the motion lodged on 15 November 2010, the applicant also relied on the investigator’s decision of June 2010 whereby G.A.’s official duties were temporarily terminated. On the same date the Regional Court rejected the applicant’s motion. In doing so, the Regional Court stated the following: “Given that accused G.A. had properly attended all the court hearings, there is no evidence of him trying to influence the participants in the proceedings; therefore the court finds that there is no need whatsoever to change or annul bail as the preventive measure applied in his respect.” At the hearing of 3 December 2010 the applicant lodged a further motion seeking to have G.A. detained, to which the Prosecutor did not object. Raising the same arguments as before, the applicant submitted the following: “...today, during the hearing... the prosecutor made a statement that he found out today that accused G.A. visited the investigator a month ago and stated that witness G.M. had been abducted so that he could not appear in court and testify. Taking accused G.A.’s behaviour into account ... he could obstruct the court proceedings by influencing the participants in the criminal proceedings or by other means...”. On the same day the Regional Court granted the applicant’s motion and ordered G.A.’s detention from the courtroom. In doing so, the Regional Court stated that, taking into account the Prosecutor’s statement and the arguments submitted by the applicant, it considered that the accused, while at large, could commit an offence, avoid the body conducting the proceedings and obstruct the examination of the case by exerting undue influence on the participants in the criminal proceedings. It appears that on the same day the applicant lodged another motion seeking the recusal of Judge D. She claimed, inter alia , that during the previous hearing, when V.G. stated his wish that his lawyer be present during the proceedings, Judge D. announced a five-minute recess. Thereafter, Judge D. and V.G. left the courtroom and when they returned five minutes later V.G. announced that he agreed that the case be examined in the absence of his lawyer. It followed that an agreement favourable for V.G. had been reached between him and Judge D., otherwise the accused would not have agreed to being unrepresented during his trial. By a decision made on the same day Judge D. rejected this motion, finding that the applicant’s conclusions were unsubstantiated and based on mere assumptions. Before the Regional Court M.S. stated, inter alia , that he had not heard that Sergey Manukyan had committed suicide because of family problems. He had heard, however, that Sergey Manukyan had a mobile telephone which the police officers had found, broken, in his pocket. He had also heard that V.G. had broken the telephone, but he was not aware of the reasons for this. M.S. also stated that he did not remember who exactly, whether the commander or one of his deputies, had told the soldiers to say that Sergey   Manukyan had problems with his girlfriend if asked about the reason for his committing suicide. On 7 December 2010 the applicant lodged a civil claim within the framework of the criminal proceedings seeking compensation for pecuniary and non-pecuniary damage, including compensation for Sergey Manukyan’s mobile telephone which had been broken by V.G., as established during the investigation, transport costs for attending the court hearings and compensation for non-pecuniary damage suffered as a result of the loss of their son. On 9 December 2010 the applicant sent a request to the Minister of Defence asking him, inter alia , to find out whether the former commander of the military unit, G.A., had taken any measures to reinforce the military personnel with additional officers and if so, why those measures were not followed up and the persons responsible identified. In this regard she referred to G.A.’s statement made at the hearing of 7 December 2010 when the latter had indirectly blamed the Ministry of Defence for the death of her son. He claimed that, although he had no such right, he had been obliged to put V.G. in charge of the sentry post so often, despite the fact that the latter was a weak officer and had been reprimanded three times for not respecting discipline, because there were no other officers. He had further stated that for several months he had applied to the Ministry of Defence with requests to reinforce the military unit with new personnel, but his requests had received no follow-up and he had therefore been obliged to put V.G. in charge of the sentry post three times in one week. On 20 December 2010 the applicant submitted a written pleading to the Regional Court. In her pleading the applicant argued, inter alia , that the investigation into Sergey Manukyan’s death had been ineffective since during the entire investigation and during a part of the court proceedings G.A. had remained at large, which gave him ample opportunity to collude with the witnesses who were the officers and conscripts of the military unit under his command. She further complained that a number of important circumstances concerning her son’s death, such as the position of his body when shot, the trajectory of the bullet, the presence of traces of his blood sixteen metres away from where the body was found, were not properly investigated. The applicant submitted that the entire investigation had concentrated on the version of a suicide and no measures had been undertaken to find out whether Sergey Manukyan had been murdered. On the same day, the Regional Court delivered a judgment finding V.G., M.S. and G.A. guilty as charged and sentenced them to imprisonment for six, two and seven years respectively. M.S. was exempted from serving his sentence by application of the Amnesty Act of 2009. The Regional Court partially granted the applicant’s civil claim for compensation for pecuniary damage and left the claim for non-pecuniary damage unexamined, entitling her to lodge a separate claim in civil proceedings. V.G. and G.A. lodged appeals against the Regional Court’s judgment. The applicant also lodged an appeal mainly complaining that the sentences imposed on the accused by the Regional Court had not been adequate. She complained, inter alia , that the Regional Court had failed to assess properly all the circumstances of the case, and in particular the fact that in the aftermath of the incident M.S. had stated that Sergey Manukyan had committed suicide because of his girlfriend, G.A. had told the officers to state that he had committed suicide because of family problems and V.G. had broken Sergey Manukyan’s mobile telephone and its card. On 14 February 2011 the applicant submitted a written reply to G.A.’s appeal in which she mainly argued that the Regional Court had failed to exclude G.M.’s statements from the evidence for being unreliable. She stated, inter alia , that in the course of the proceedings G.A. had tried to influence the witnesses, including G.M. While at large during the entire investigation and a part of the court proceedings, G.A. had exerted undue influence on the officers and conscripts of the military unit under his former command. In this regard she referred to V.G.’s statement that after the incident G.A. had told the officers to state that Sergey Manukyan had committed suicide because of family problems. Also, some of the witnesses avoided testifying before the court by saying that they did not remember what had happened. As regards in particular G.M., he had given quite a detailed account of the events before the court but once asked about G.A., he stated that he stood by his pre-trial statement, which proved that he was afraid to testify in front of G.A. in the courtroom. Moreover, as for G.M.’s alleged absence from the country, it was also the result of G.A.’s pressure on him, since he had to come up with different justifications in order to avoid testifying before the court. On 6 May 2011 the Criminal Court of Appeal fully upheld the Regional Court’s judgment of 20 December 2010. In doing so, it found that the Regional Court had made a correct assessment of witness G.M.’s statements, which were supported by other evidence. The Court of Appeal also found that V.G. and G.A. could have foreseen the consequences of their unlawful conduct, including the possibility of Sergey Manukyan committing suicide, in view of the fact that they were both aware of the events of 14   May 2009 when the latter had cut his wrist with a razor blade. Nevertheless, they had not stopped using violence against Sergey Manukyan, including on the day of the incident, which had resulted in his suicide. On 6 June 2011 the applicant lodged an appeal on points of law, mainly reiterating her arguments submitted before the Court of Appeal. V.G. and G.A. also lodged appeals on points of law. On 12 July 2011 the Court of Cassation declared the appeals on points of law lodged by the applicant, V.G. and G.A. inadmissible for lack of merit. It appears that on 20 October 2011 the applicant lodged a separate civil claim seeking recognition of the violation of Article 2 of the Convention and compensation for non-pecuniary damage suffered as a result of her son’s death. B.     Relevant domestic law The Criminal Code (in force since 1 August 2003) According to Article 110, causing somebody to commit suicide or make an attempt at suicide by indirect intention or by negligence by means of threat, cruel treatment or regular humiliation of one’s dignity shall be punishable by imprisonment for up to three years. Article 375 § 1 provides that abuse of authority or public position, exceeding public authority, as well as omission by a superior or public official, if such acts were committed for selfish ends, personal interest or interests of a group and resulted in grave damage, shall be punishable by imprisonment from two to five years. According to Article 375 § 2, the same offence which has negligently caused severe consequences shall be punishable by imprisonment from three to seven years. COMPLAINTS The applicant complains under Articles 2 and 13 of the Convention that the authorities failed to conduct an effective investigation into her son’s death. She complains, in particular, that a number of important circumstances concerning his death were never clarified. She further complains that the entire investigation was focused on the suicide hypothesis and no investigation was carried out into the possibility that he was murdered. The applicant further complains under Article 8 that the courts, including the Criminal Court of Appeal which allowed her to make final submissions, failed to address adequately the issues raised by her as the victim party in the proceedings.   QUESTIONS TO THE PARTIES 1.     Was the applicant’s son’s right to life, ensured by Article 2 of the Convention, violated in the present case?   2.     Having regard to the procedural protection of the right to life, was the investigation by the domestic authorities in the present case in breach of the guarantees under Articles 2 and 13 of the Convention?   The Government are requested to provide copies of the following documents: (1) the entire investigation file of the case instituted in relation to the death of the applicant’s son; and (2)   the transcript of the proceedings before the Syunik Regional Court, with the accused G.A.’s statement clearly indicated.